Bartolo's De Insigniis et Armis

Last revised September 1997

Bartolo da Sassoferrato

Bartolo da Sassoferrato (1314-57) was an internationally renowned jurist
of the Middle Ages. Born in Sassoferrato, he became a doctor at 21 in Bologna,
where he taught; he later taught in Pisa from 1339 to 1343 and in Perugia
from 1343 to his death. In 1355, he participated in an embassy to the emperor
Charles IV in Pisa, upon which occasion Charles IV granted him a number
of insign honors and a coat of arms. His reputation and influence lasted
for two centuries at least, and he was considered the preeminent civil
law jurist of Western Europe.

the Tractatus de Insignis et Armis

Jurists in the Middle Ages were mainly of two kinds: canonists, who
specialized in Canon or Church law, and legists or romanists, who specialized
in civil law based on Roman law. In practice, canonists were also very
familiar with civil law and relied on it to a large extent.

Writings by legists were generally in the form of Commentaries or Lectures
on the corpus of civil law (the Justinian Code, the Digest, the Institutions,
the Novellae), which followed closely the text of the corpus and added
comments which often turned into long, detailed analyses. Also, legists
would put together material pertaining to a single subject in a treatise,
or tractatus. Bartolo's treatise is the earliest work to tackle
the legal aspects of heraldry.

The Tractatus is traditionally thought to have been written after the
grant of arms to Bartolo by Charles IV in 1355. Cavallar, Dengenring and
Kirshner consider this grant of arms as a fable, although it is mentioned
in the Tractatus itself, confirmed by the contemporary jurist Angelo degli
Ubaldi, and perfectly plausible. The arms granted were Or a lion with
forked tail gules (a variation of the Bohemian arms). The Tractatus
was unfinished when Bartolo died and it was completed and edited by his
son-in-law Nicolò Alessandri in January 1358. More than 100 manuscript
copies of the Tractatus survive from the Middle Ages, attesting to its
popularity and widespread influence. It was quoted or used by most early
works dealing with heraldry, such as Johannes de Bado Aureo (John Guildford
[= de Vado Aureo] according to some, Siôn Trevor bishop of St. Asaph
from 1395 to 1410, according to Evan J. Jones))
in his Tractatus de Armis of 1395, Honoré de Bonet's Arbre
des Batailles of 1387, Christine de Pisan's livre des fais d'armes
et de chevalerie of 1410 and thence William Caxton's translation Fayttes
of Armes of 1489, Nicholas Upton's De studio militari of ca.
1446, Clément Prinsault's Traité du blason of 1465,
the Argentaye Tract (late 15th c.), Felix Hemmerlin's Dialogus
de nobilitate et rusticitate of 1444, Peter de Andlau's De imperio
Romano-Germanico of 1460, Barthélemy de Chasseneuz' Catalogus
de gloria mundi of 1529.

Roman Law rose to preeminence in the 12th century, after the independent
scholar Irnerius began teaching in Bologna at the end of the 11th c. By
1280, Bologna and several European cities had an established university.
Roman law, as transformed and adapted by the Glossators (up to ca. 1260)
and the post-Glossators, was particularly influential in Southern Europe
and Germany, and contributed to the formation of the European jus commune,
the body of rules and procedures which complemented, or underlied,
local customs. When local custom was found insufficient, lawyers and
judges turned to Roman law.

England was a country where common law prevailed and Roman law was not
used in common law courts. But those were not the only courts:
ecclesiastical courts followed canonical- law, which relied heavily on
Roman law. However, Bartolo's influence is known to have
been great in English ecclesiastical law, which was based on civil law (Lyndwood's
Provinciale, still a standard work in the 17th c., is full of references
to Bartolo). Civil law
was taught in the English universities, and Bartolo's work was well known
and admired. Any "civilian" (jurist trained in civil law) of
the late 14th c. or 15th c. would have been familiar with Bartolo. It
should also be noted that the Court of chivalry was not a court of
common law, but operated under the rules of civil law, itself based
on Roman law. Walter
Ullmann, professor of law at Cambridge University, expressed the opinion
that Bartolo's influence may have been felt among the civilian lawyers
of the Court of Chivalry:

« Whilst we have here within the precincts of ecclesiastical jurisdiction
a manifest direct influence of Bartolus, in the other courts in which Roman
law alone came to be applied, his influence can only be conjectural, although
highly probable,. The one other court which administered Roman law was the
court of the Constable and Marshal, the so-called Curia militaris sub
conestabili et marescallo Angliae. Like the ecclesiastical courts this
court too was composed entirely by graduates and must therefore be presumed
to have become acquainted with Bartolus' teachings during their legal
education. This all the more so, as the jurisdiction of this court dealt
in general with matters which arose outside the kingdom, and for this
reason an acquantance with up to date civilian literature appears to
have been necessary; crimes committed outside England, contracts
entered into beyond the shores of England, and, above all, matters
pertaining to warfare, came within the competency of this court.
These issues themselves would suggest that, because virtually impossible
to be dealt with according to pure Roman law, the judges of this court
had to be familiar with the accomodation of Roman law to the contemporary
situation. As I have said, although the influence of Bartolus appears
highly likely, no clear verdict can be given, until the records of this
court are made available.»

An indication of the influence of Bartolo can be garnered from the
diffusion of manuscripts of his works. The Bodleian library in Oxford
has a 15th c. copy of the Tractatus in
the original Latin, as well as a translation into English. The Cotton Library
has another 16th c. copy, and so does Cambridge University. The British
Museum owns a copy made before 1426 (in the Arundel manuscripts). Most
interestingly, the Bodleian has a 16th c. copy annotated as follows by
Richard Rawlinson in 1586: "This was wrote by William Smith Rouge
Dragon, a very industrious officer in the college of arms, temp. Elizabeth.
Reg. Thus Mr. Anstis." The British Museum (in the Stowe manuscripts)
has another 15th c. copy which belonged to Richard Glover, Somerset Herald
(d. 1588), who also owned a French translation. Thus, the Tractatus was
not only known in England, but was also of interest to 16th c. heralds
of the College of Arms (of course, one cannot presume that they endorsed
his views on the subject!).

Scotland, where Roman law was much more influential than England,
presents more evidence of Bartolo's impact in heraldic matters in the British Isles
David M. Walker (A Legal History of Scotland, Edinburgh,
1990; vol. 2, p. 7) notes: "It is interesting that the subject to which
some of the earliest surviving Scottish legal literature relates is heraldry
and the law of arms. The earliest extant treatise on heraldry is the
Tractatus de Insigniis et Armis of Bartolus of Sassoferrato of about 1356.
A fifteenth century manuscript of this treatise, made for William Cuming of
Inverallochy, the Marchmont Herald of the time, and a manuscript copy of
about the same time which belonged to John Meldrum, his successor, are
both extant. Honoré Bonet's Arbre des Batailles or Book of the
Law of Arms, written about 1386, translated by Gilbert de la Haye in Rosslyn
Castle in 1456 at the request of the Earl of Orkney and Caithness, Chancellor
of Scotland, and noteworthy as a very early specimen of Scottish literary
prose, includes sections on armorial bearings directly founded on
Bartolus' Tractatus. Accordingly it seems that knowledge of Bartolus'
work and of this branch of law was at least indirectly known in Scotland
before 1500."

This is paradoxical, since recent Scottish heralds (Innes of Learney) have
claimed that regulation of armory in Scotland is grounded in medieval practice!

Bartolo on the Right to Arms

The text is taken from Osvaldo Cavallar, Susanne Dgenring and Julius
Kirshner, A Grammar of Signs: Bartolo da Sassoferrato's Tract on Insignia
and Coats of Arms, Berkeley CA 1994, Robbins Collection Publications.
Their excellent introduction provides much context and analysis of the
tract, although (as said above) I dispute their conclusion that the grant
of arms to Bartolo is a fable.

Let us consider the insignia and coats of arms that are borne on banners
and shields.

§1. First, whether it is permitted to bear them, and second, if
it is permitted, how they are to be painted and borne.

I say that some insignia are proper to a rank or office, and that anyone
may bear them if he holds that rank or office, as for example the insignia
or proconsuls or legates (Dig. 1.16.1, 1.8.8), or, as we can see today, the
insignia of bishops.
And anyone who has that rank can bear these insignia. This is not permitted
to others, and if someone who is not entitled to them bears them, he incurs
the charge of fraud (Dig. 48.10.27.2).
And so I think that those who bear the insignia of
the doctor of law when they are not doctor are liable to that penalty.

§2. Some insignia are proper to anyone of a particular rank---for
example, any king, prince, or other potentate has his own coat of arms
and insignia, and is is permitted to no one else to bestow them or depict
them on their own belongings (Cod. 2.14[15], Nov. 17 = A 3.4.16).
I believe that this means that one cannot
copy the insignia as such; however, it is not prohibited to use such insignia
as an accompaniment---for instance, to place the insignia of a king, lord,
count, or commune on one's own coat of arms as a sign of subjection. And
this is common practice.

§3. Some insignia or coats of arms belong to private persons, either
nobles or commoners, and some of these have coats of arms and insignia
which they bear by the grant of an emperor or other lord. I have seen the
Serene Prince Charles IV, Emperor of the Romans and King of Bohemia, grant
many insignia and coats of arms. Among other concessions, the prince gave
me (his counselor) and my agnates a red lion on a golden field. And there
is no doubt that it is permitted to such persons to bear such insignia,
for it is sacrilegious to question the power of a prince (Cod. 9.29.2,
Cod. 2.16[17]). If something
is forbidden without the authority of a judge, then it is certainly permissible
by his authority.

§4. Some assume coats of arms and insignia on their own initiative,
and we should consider whether they are permitted to do it. I think that
they are permitted. Just as names are created to identify persons
(Cod. 7.14.10), so insignia
and coats of arms are devised for this purpose (Dig. 1.8.8).
Anyone is permitted to
use such names for himself (Dig. 1.8.8, Dig. 48.1.13), and thus anyone can bear these insignia and
depict them on his own belongings, but not on another's (Cod. 2.16(17).2,
X 5.31.14, and gloss).

§5. I ask whether someone is permitted to bear the same coat of
arms or insignia as another or whether he can be prohibited. It seems that
he is permitted because anyone can assume the name of another (Dig.
36.1.65[66].10, Dig 31.76.5), and many
may have the same name (Dig. 26.2.30, Dig. 31.1.8.3).
Therefore, anyone can assume the coat of arms of
another, and many can bear the same insignia and place them on their belongings
since this is done for the purpose of identification. It also seems, however,
that he can be prohibited (Dig. 50.17.11),
for if we were the first to adopt the sign and
thus it belongs to us, it cannot be taken away except by our own consent.
But this fundamental principle of ownership cannot be applied here. It
applies when several persons cannot use the same object at the same time;
however, it does not apply to the use of a facility such as a square, a
bath, or a theater (Dig. 13.6.5.15)

Furthermore, the sign that someone bears is not really identical to
the same sign borne by another; rather, they are different,although they
might appear alike. Therefore, concerning the initial question, I say first
that one can prohibit or seek to prohibit another from using his sign if
he is injured by it because the other party bears the coat of arms with
contempt or treats it shamefully (Cod. 1.9.11, Cod. 1.4.4, X 5.31.14).

Second, a third party who is harmed can lodge a complaint about the
improper use of the coat of arms, and by his petition the bearer can be
prohibited from using it (Cod. 2.14(15).1, Nov. 17 = 3.4.16).

Third, if a judge, by virtue of his office, sees that such use may cause
public scandal and confusion among the subjects, he can prohibit it
(Cod. 7.6.1.5) lest the people be deceived (X 5.6.15).

§6. Having established these three points, I make the following
distinctions. Sometimes one assumes a coat of arms that another has borne
from antiquity and it does not affect or damage the original bearer, nor
can he be harmed because of the likeness. For example, a German went to
Rome at the time of the jubilee (1350), where he found a certain Italian
bearing a coat of arms and insignia of his ancestors, and he wanted to
lodge a complaint against the other bearer. Certainly, he could not do
it, for the distance between their respective permanent places of residence
is so great that the original bearer could not be harmed by the other.
Therefore, as in those cases in which someone uses a facility accessible
to all, a complaint cannot be lodged without a good reason (Dig. 43.13.1.6).

§7. Sometimes it may happen that the use of a coat of arms or insignia
by one individual may impinge on another who uses the same insignia. If
a person who has many enemies and against whose life many are plotting
assumes the coat of arms and insignia of another peaceful or quiet person,
certainly it matters much to the latter, and he can see to it that the
former is prohibited. Just as a complaint can be lodged against someone
who bears a coat of arms or insignia contemptuously, all the more can a
complaint be lodged to pervent one from being mistakenly killed or injured
in place of another who has adopted the identical coat of arms. Similarly,
one can appeal to a judge whose concern is the peace of the people, if
the person assuming the coat of arms of another is a public threat
(Dig. 1.12.1.12).

[...] §9. Next, I ask what are the advantages of having coats of
arms by imperial grant. There are many.

First, they are of greater dignity, as we say in the case of a testament
made before the emperor (Cod. 6.23.19).

Second, one cannot be prohibited by another from bearing such coats
of arms (Cod. 6.8.2, Dig. 4.4.1.1).

Third, if two persons assumed the same coat of arms and it is not clear
who had them first, the one who had them from the prince is preferred
(Dig. 27.1.6).

Fourth, if a question of precedence arises regarding military persons
on the battlefield or somewhere else, then the coat of arms granted by
the prince should have precedence (Dig. 50.3.2,
X 1.33.7, Dig. 27.1.6). The aforesaid applied when all other
things are equal---namely, when those who have coats of arms are of equal
rank; otherwise, the coat of arms of the one of greater dignity should
have precedence (Dig. 50.3.1, Cod. 12.3.1).

Bartolo goes on to discuss inheritance of coats of arms: for him, some
coats of arms belong to a house or agnation and pass to all agnates, whether
or not they are heirs of the father or his ancestors. They do not belong
to the cognates or those related by marriage, nor can they be inherited
by illegitimate children. He also discusses in great details merchants'
marks, what happens to them when a partnership is dissolved, craftsmen's
trademarks, etc. This part is particularly interesting, since it prefigures
modern trademark laws. He takes as an example a maker of swords who puts
his mark on his products, and has a legitimate interest in protecting his
mark from being used by competitors.

(On merchant marks, see Ed. Elmhirst, Merchant's Marks; London, 1959;
with a catalogue of 1280 merchants' marks from the 13th to the 18th c. found
in England, some displayed on a heraldic shield).

The second part of the tract, which was probably left unfinished and
completed by the son-in-law, deals with the pictorial display of the arms,
how the animals should be depicted, which colors are used, etc.